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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 59
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PD1199/05
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OPINION OF LADY PATON
in the cause
GAVIN SLESSOR
Pursuer;
against
VETCO GRAY UK
LIMITED
Defenders:
and
VETCO GRAY CONTROLS
LIMITED
Third Party
ннннннннннннннннн________________
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Pursuer:
A Smith QC; Anderson Strathern
Defenders: R Smith QC, Gardiner; Simpson & Marwick
Third Party: No Appearance
23 March 2007
Introduction
[1] The
pursuer was born on 2 May 1977. On 13 May
2003 he was working in Aberdeen
in the course of his employment with the defenders. A control module weighing about 1.7 tons fell
from a crane and struck him. He suffered
severe injuries, including amputation of the right leg and arm. In this action he seeks damages from the
defenders. The defenders for their part
deny liability. They blame a third party,
Vetco Gray Controls Limited, who supplied and fitted a component of the crane
assembly. They also claim that the accident
was caused or contributed to by the pursuer's sole fault or contributory
negligence.
Motion for summary decree on the issue of liability
[2] After
sundry procedure, governed by Chapter 43 of the Rules of the Court of
Session, the pursuer sought a jury trial in terms of Rule 43.6(5). The defenders opposed jury trial. The matter was debated before
Lord Emslie, but a continued diet of debate became necessary. Before that continued debate could take
place, the pursuer amended his pleadings to focus his case solely upon a breach
of Regulation 4(3) of the Provision and Use of Work Equipment Regulations
1998. He then enrolled a motion for
summary decree against the defenders in terms of Rule 21.2. The defenders opposed the motion in the
following terms:
"It is not clear
from the motion what remedy the pursuer is seeking. In any event the pursuer's motion should be
refused as there is a defence to the action disclosed in the defences. The defenders are not in breach of
Regulation 4(3) of the Provision and Use of Work Equipment Regulations
1998. The defenders also offer to prove
that the pursuer was solely responsible for the accident. They also offer to prove that the pursuer
contributed to his loss, injury and damage through his own negligence."
[3] Lord Emslie
advised counsel that it was not necessary that he personally should hear the
motion for summary decree. The motion
came before me. I was invited to find
the defenders liable to make reparation to the pursuer, and to restrict any
further inquiry to (i) issues of contributory fault; (ii) the question of any liability on the
part of the third party; and (iii)
quantification of damages. Senior
counsel for the pursuer explained that, once the question of summary decree had
been decided, the case would return to Lord Emslie for the continued
debate on proof or jury trial: hence the
pursuer's use of the broad phrase "further inquiry".
Rule of Court 21.2
[4] Rule
21.2 of the Rules of the Court of Session provides:
"(1) Subject to
paragraphs (2) to (5) of this rule, a
pursuer may, at any time after a defender has lodged defences while the action
is depending before the court, apply by motion for summary decree against that
defender on the ground that there is no defence to the action, or a part of it,
disclosed in the defences.
(2) In applying
for summary decree, the pursuer may move the court -
(a) to grant
decree in terms of all or any of the conclusions of the summons;
(b) to pronounce
an interlocutor sustaining or repelling a plea-in-law; or
(c) to dispose
of the whole or a part of the subject-matter of the action ...
(4) On a motion
under paragraph (1), the court may -
(a) if satisfied
that there is no defence to the action disclosed or to any part of it to which
the motion relates, grant the motion for summary decree in whole or in part, as
the case may be ...".
Pleadings
[5] The
parties' pleadings include the following averments:
Statement
IV
[6] On or about 13 May 2003, the
pursuer was working in the course of his employment with the defenders as a
Mechanical Fitter. He was working at the
defenders' premises at Broadfold Road, Aberdeen. The pursuer was assisting with lifting a
control module by crane. The control
module weighed about 1.7 tons. The
pursuer was guiding the control module into a hole in a structure known as a Christmas
Tree. To do this the pursuer had to
stand on the Christmas Tree next to the hole.
The defenders were using the wrong sized lifting adaptors. As a result the control module was not
properly secured to the crane. The
control module fell from the crane and struck the pursuer. As a result of the accident the pursuer
suffered the following loss, injury and damage.
On October 2004 the defenders pled guilty to breaches of Sections 2(1)
and 33(1)(a) of the Health and Safety at Work Act 1974 and were fined
г17,500. The charges were that the
defenders had failed to instruct their employees as to how to identify the
correct lifting adaptor, failed to identify who had responsibility to fit the
lifting adaptors and failed to provide a system of work which did not require
employees to be under or in close proximity to the suspended load when the
module was being lifted. During the
course of the plea in mitigation the defenders' agent accepted that the
defenders were wholly to blame for the accident and expressed remorse on their
behalf. The defenders have provided a
risk assessment for lifting operations.
That risk assessment identifies failures of tackle as a significant
hazard with potentially serious or fatal injuries to riggers and slingers. The measure identified to reduce this risk is
certification of statutory tests and examinations to be provided with the
goods. No such certification or
examinations were provided with the lifting adaptor. Since the accident the procedure has been
changed so that the modules are guided into position using guidelines. This means that there is no need for anyone
to stand on the Christmas Tree beneath the module being lifted. The lifting adaptor was work equipment in
terms of the Provision and Use of Work Equipment Regulations 1998. With reference to the defenders' averments in
answer, admitted that the pursuer was an experienced banksman. Admitted that the control module and lifting
adaptor were supplied to the defenders by Vetco Gray Controls Limited who were
formerly known as ABB Offshore Systems Limited.
Admitted that in order to install the control module it had to be lifted
using a crane. Admitted that the lifting
adaptor on the crane had to lock onto a mandril located on top of the control
module. Admitted that the lifting
adaptor supplied by Vetco Gray Controls Limited was the wrong size for the
mandril. Not known and not admitted what
role Stephen Rowney had to play in installing the control module. Quoad
ultra denied except insofar as coinciding herewith. Explained and averred that the pursuer was
following normal practice and procedure at the time of the accident. The defenders are called upon to specify
where else the pursuer could have stood in order to carry out this
operation.
Answer 4 for Defenders
[7] Admitted
that on 13 May 2003,
the pursuer was working in the course of his employment with the defenders as a
Mechanical Fitter. Admitted that he was
working at the defenders' premises at Broadfold Road, Aberdeen. Admitted that the defenders were convicted of
breaches of the Health and Safety at Work Act 1974 and fined г17,500. The circumstances of the accident are not
known and not admitted. Any loss, injury
or damage sustained by the pursuer is not known and not admitted. Quoad
ultra denied. The pursuer was an
experienced banksman. He had received
training as a banksman slinger. He
fitted the lifting adaptor to the control module. He did not check that the lifting adaptor was
the correct size for the mandril. He did
not make sure that the lifting adaptor was securely locked onto the mandril on
the control module before advising the crane operator to lift the control
module. In addition he was under the
control module when it fell. He was
trained not to place himself below a suspended load during a lifting
operation. The pursuer caused or
materially contributed to his own injury by failing to make sure that the
lifting adaptor was the correct size for the mandril, failing to make sure that
the adaptor was securely locked onto the mandril and standing beneath a
suspended load. In any event the control
module and lifting adaptor were supplied to the defenders by Vetco Gray
Controls Limited, 2 High Street,
Nailsea, Bristol, BS48 1BS
who were formerly known as ABB Offshore Systems Limited. Stephen Rowney, a Field Service Engineer
with Vetco Gray Controls Limited, was responsible for the installation of the
control module. In order to install the
control module it had to be lifted using a crane. The lifting adaptor on the crane had to lock
onto a mandril located on top of the control module. The lifting adaptor supplied by Vetco Gray
Controls Limited was the wrong size for the mandril. Stephen Rowney did not check that the
lifting adaptor was the correct size for the mandril. He did not supervise the lifting
operation. Esto the accident occurred because the wrong lifting adaptor was
used to lift the control module, which is not known and admitted, the accident
was caused by the fault and negligence of Vetco Gray Controls Limited et separatim their breach of statutory
duty. It was also caused by the fault
and negligence of Stephen Rowney for whom Vetco Gray Controls Limited are
vicariously liable.
Statement
VI
[8] The accident was caused by the
defenders' breach of Regulation 4(3) of the Provision and Use of Work
Equipment Regulations 1998. The
defenders' averments are denied insofar as coinciding herewith.
Answer 6 for Defenders
[9] Regulation 4(3)
of the Provision and Use of Work Equipment Regulations 1998 is referred to for
its terms beyond which no admission is made.
Quoad ultra denied. The defenders contend that (i) they are not
liable to make reparation to the pursuer, (ii) the accident was caused by the
sole fault of the pursuer, (iii) the pursuer caused or materially contributed
to the accident by his own fault and negligence and any award of damages should
be reduced in terms of the Law Reform (Contributory Negligence) Act 1945, (iv)
the accident was caused by the fault and negligence of Vetco Gray Controls
Limited et separatim their breach of
Regulations 4 and 8(1) of the Lifting Operations and Lifting Equipment
Regulations 1998 and Regulations 4 and 12 of the Provision and Use of Work
Equipment Regulations 1998, (v) the accident was caused by the fault and
negligence of an employee of Vetco Gray Controls Limited for whom they are
vicariously liable, (vi) even if the defenders are liable to the pursuer to
some extent, Vetco Gray Controls Limited are also liable and damages should be
apportioned between them in terms of Section 3 of the Law Reform (Miscellaneous
Provisions) (Scotland) Act 1940, (vii) the sums sought are excessive and (viii)
Clause B13 of the Consortium Agreement does not provide the third party
with an indemnity from the defenders.
Provision and Use of Work Equipment
Regulations 1998
[10] Regulation 4(3) of the Provision and Use
of Work Equipment Regulations 1998 ("the 1998 Regulations") provides:
"Every employer
shall ensure that work equipment is used only for operations for which, and
under conditions for which, it is suitable."
[11] Regulation 4(4) defines "suitable" as meaning "suitable in
any respect which it is reasonably foreseeable will affect the health or safety
or any person".
Submissions for the pursuer
[12] Senior counsel for the pursuer submitted that the reason for
the accident was set out in the defenders' own pleadings in Answer 4 at page 9D
to 10A of the Record, as follows:
"In order to
install the control module it had to be lifted using a crane. The lifting adaptor on the crane had to lock
onto a mandril located on top of the control module. The lifting adaptor supplied by Vetco Gray
Controls Limited was the wrong size for the mandril. Stephen Rowney [a field service engineer with
Vetco Gray Controls Limited responsible for the installation of the control
module] did not check that the lifting adaptor was the correct size for the
mandril. He did not supervise the
lifting operation ..."
[13] The defenders therefore accepted that the wrong work equipment
had been supplied, but they blamed the suppliers and their employee Stephen
Rowney.
[14] At page 6C of the Record, the pursuer averred that the
defenders had in October 2004 pled guilty to breaches of sections 2(1) and
33(1)(a) of the Health and Safety at Work Act 1974, and had been fined
г17,500. The relevant complaint was in
the following terms:
"The charge
against you is that:
on 13 May
2003, at your premises at Broadfold Road, Aberdeen, you ... being an employer did
fail to ensure so far as reasonably practicable the health, safety and welfare
at work of your employees and in particular
(a) you did fail to instruct your employees
that there were two types of lifting adaptor for Subsea Control Modules ... and
did fail to instruct your employees how to identify the correct lifting adaptor
for each Subsea Control Module and did fail to instruct your employees as to
who had the responsibility to fit lifting adaptors to Subsea Control
Modules; and
(b) you did fail to put in place a safe
system of work for the fitting of Subsea Control Modules to "Christmas tree"
assemblies and in particular, did fail to put in place a system of work which
did not require your employees to be under or in close proximity to a suspended
load when a Subsea Control Module was being lifted onto the Christmas Tree;
whereby on 13 May
2003, at said premises whilst your employee Gavin Slessor was engaged in
fitting said Subsea Control Module to a "Christmas tree" assembly, the said
Subsea Control Module was fitted with an unsuitable lifting adaptor, was lifted
and fell from the lifting adaptor, striking said Gavin Slessor on the body, in
the course of his work, all to his severe injury and permanent impairment;
CONTRARY to the
Health and Safety at Work etc Act 1974, section 2(1) and 33(1)(a) ..."
[15] Counsel submitted that it was illogical of the defenders to
plead guilty to that charge, and yet to aver on record that the accident had
been caused by the pursuer's sole fault.
The defenders' only response to the conviction were the bald averments
at page 8C:
"Admitted that
the defenders were convicted of breaches of the Health and Safety at Work Act
1974 and fined г17,500. The
circumstances of the accident are not known and not admitted."
[16] Counsel submitted that it was astonishing that the defenders
claimed not to know the circumstances of the accident.
[17] Reference was then made to Rule 21.2(2)(c) and 21.2(4) of the
Rules of the Court of Session, and to the terms of Regulation 4(3) of the 1998
Regulations. The words "shall ensure" in
Regulation 4(3) imposed an apparently absolute obligation upon employers,
although the word "suitable" might be regarded as introducing a qualification
or acknowledgement that the question of reasonable foreseeability might arise
to some extent in relation to the suitability of work equipment. The complaint under the Health and Safety at
Work Act had charged the defenders with failing to ensure "so far as reasonably
practicable" the health, safety and welfare of their employees. It was difficult to see how the defenders
could plead guilty to failing in that respect if it had not been reasonably
foreseeable that using the wrong component in a crane assembly intended to lift
a heavy load which would swing over an employee's head would constitute a risk
to that employee's health, safety and welfare.
But in any event, any element of foreseeability contained in Regulation 4(3)
was not the common law reasonable foreseeability.
[18] Counsel then referred to Section 10 of the Law Reform
(Miscellaneous Provisions) (Scotland)
Act 1968. In terms of Section 10(2)(b),
the court was entitled to look at the complaint when ascertaining the facts
connected with the accident. The fact
that the defenders had been convicted meant that the court was obliged to assume
that the defenders had acted in the way set out in the complaint, unless the
defenders offered to prove otherwise.
The defenders' averments did not offer to prove otherwise. Accordingly it was legitimate for the court
to take into account the terms of the convictions and the terms of the Health
and Safety at Work Act, and to reach a view about the facts. Those facts could be seen to amount to an
offence in the criminal context, and, it was submitted, to a breach of duty in
the civil context: cf. Cooper v Northern Scaffolding Group plc, 1997
S.L.T. 157.
[19] The proper approach to summary decree and the operation of Rule
21.2 had recently been considered in the House of Lords in Henderson
v 3052775 Nova Scotia Ltd, 2006 SC (HL) 85, in particular by Lord Rodger at paragraphs [11] to
[19]. The court had to examine the
pleadings and decide whether there was a genuine defence. If there was none, the motion for summary
decree was well justified. In the
present case, in the absence of any averments offering to prove that the
defenders did not do what they had pled guilty to, a judge conducting a jury
trial would be bound to direct the jury to answer the Issue in the
affirmative. The defenders were indeed
"bound to fail". The test for summary
decree was a high one, but the present case met the test.
[20] Further guidance could be found in Pope v James McHugh Contracts Limited and
another, 2006 S.L.T. 386; and
in Robb v Salamis (M and I )
Ltd, 2007 SLT 158, paragraphs [24], [29], [45] and [53]. In Pope, the Lord Ordinary
considered a non-delegable duty, and granted summary decree despite the fact
that the proof diet was imminent. In the
present case, the duty in terms of Regulation 4(3) was similarly non-delegable,
and no proof diet or jury trial had been fixed.
In Robb, the House of Lords made a careful analysis of the nature
and origins of the 1998 Regulations, and the question of reasonable
foreseeability in that context. Counsel
submitted that in the present case it was for the defenders to state why
something was not foreseeable: the
pursuer did not have to aver why something was foreseeable.
[21] Counsel submitted that the case against the defenders was so
clear that there was no conceivable defence.
The defenders were simply taking every opportunity to over-complicate
matters in order to avoid a jury trial.
If summary decree were granted, the jury could be told that liability
was established. In any event, the
pursuer would have little evidence to lead on the question of liability, possibly
leading only the solicitors who appeared for the defenders in the criminal case
to confirm that the defenders had pled guilty.
[22] Counsel reiterated that the pursuer's case met the test set out
in Henderson cit.
sup. Summary decree should be granted
in the terms outlined in paragraph [3] above.
Submissions for the defenders
[23] Senior counsel for the defenders confirmed that the defenders'
position was as averred at page 9D-E, namely that the third party had supplied
and fitted the lifting adaptor, which was the wrong size for the mandril. Counsel accepted in the course of the debate
that the defenders had made an apparently contradictory averment at page 10A‑B,
namely "Esto the accident occurred because the wrong lifting adaptor was
used to lift the control module, which is
not known and not admitted [italics added], the accident was caused by the
fault and negligence of Vetco Gray Controls Limited ...". The words "which is not known and not
admitted" should, in the light of the defenders' earlier clear admission about
the wrong lifting adaptor, be regarded as pro non scripto.
[24] So far as the third party was concerned, an agreement had been
reached with the defenders based on the premise "In the event that the
defenders are found liable to the pursuer ...".
[25] The defenders accepted the terms of the Law Reform
(Miscellaneous Provisions) (Scotland)
Act 1968, and admitted the conviction under the Health and Safety at Work Act
1974. However Section 47 of the 1974 Act
provided that failure to comply with a statutory duty conferred no right of
action in civil proceedings. That
affected the extent to which the court should have regard to the
convictions. The offences under the
Health and Safety at Work Act 1974 were different from the duties in terms of
the 1998 Regulations which the defenders were said to have breached. The criminal conviction related to failure to
instruct and to have a safe system, whereas the regulations were concerned with
the suitability of work equipment.
Reference was made to Gray v
Fire Alarm Fabrication Services Limited [2006] EWHC 849 (QB)
paragraphs 51 and 52. It was accepted
that the court might take from the conviction that certain events had
occurred: but as an adminicle of
evidence, the content of the specific charge was different from the alleged
breach of duty in the civil case.
[26] Before granting summary decree, the court had to be satisfied
that there was no defence, and that the defenders were bound to fail at the
proof: Henderson v 3052775
Nova Scotia Ltd, 2006 SC (HL) 85.
However the defenders' contention was that Regulation 4(3) was subject
to paragraph (4) and to reasonable foreseeability. There was therefore a qualification of the
duty. The question of reasonable
foreseeability was an important matter.
Reference was made to Lord Clyde in Robb v Salamis (M and I) Ltd, 2007 SLT 158,
paragraph [45]. Counsel submitted that,
in the present case, the onus in relation to reasonable foreseeability lay on
the pursuer. In that context, the
question to be answered was:
"Is it
reasonably foreseeable that an employee's health would be adversely affected
should the work equipment be used for this operation?"
[27] To answer that question would involve an assessment of the
facts. Counsel submitted that it could
not be assumed that such an assessment would necessarily favour the pursuer,
particularly where there were competing arguments as to onus of proof. Neither the pursuer nor the defenders had
made a specific averment about what was foreseeable, although each had averred
facts from which inferences could be drawn.
It was accepted that the duty in terms of Regulation 4(3) was not
delegable. It was a duty expressly
imposed upon the pursuer's employers.
But in the present case, the fact that the work equipment had been
supplied and fitted by a third party affected what could be regarded as
reasonably foreseeable. If the relevant
work equipment was supplied and installed by a third party, that affected the
extent to which the defenders should have foreseen the risks. The court had to assess all the facts, and
that included giving some consideration to the fact that the third party had
supplied and installed the relevant work equipment. The defenders' position was that the risk of
failure of the crane assembly might have been foreseeable in the eyes of the
third party, but not in the eyes of the defenders.
[28] Counsel accepted that in terms of the Regulations, the pursuer
did not have to prove that the defenders actually foresaw (or should reasonably
have foreseen) the risk to employees. It
was accepted that in terms of the Regulations, the court had to carry out an
objective assessment of the suitability and safety of the work equipment. Nevertheless the defenders' contention was
that the level of foreseeability depended upon the individual concerned. The test involved an assessment of all the
factors, and accordingly it might be significant whether the individual
concerned was an employee on the factory floor, an employer in charge of the
work, or an employer or a third party who supplied and installed the
equipment. Each individual might have a
different level of foreseeability. On
the pleadings in the present case, in the absence of detailed evidence about
what had gone wrong, it was not possible to form a view that the defenders were
bound to fail in their challenge as to what was reasonably foreseeable.
[29] In relation to the authorities cited on behalf of the pursuer,
counsel for the defenders submitted that each case turned on its facts. For example, in Pope v James McHugh Contracts
Limited and another, 2006 S.L.T. 386, there were particular factors which
enabled the Lord Ordinary to grant summary decree.
[30] Finally, counsel referred to Mackays Stores Ltd v City
Wall (Holdings) Ltd, 1989 S.L.T. 835
(a decision concerning a lease). Lord McCluskey
observed at page 836D:
"It is plain to
me that the issue which falls to be determined is indeed an issue of the
interpretation of this part of the document and to that extent is a pure
question of relevancy. The proper course
at the appropriate time will be either to dismiss the action as irrelevant if
counsel for the defenders' interpretation of the document be sound or to repel
the defences and to grant decree de plano
if counsel for the pursuers' interpretation be correct. If the matter were so clear that I could now
decide that the pursuers' submission on that interpretation was sound, then I
consider it would be appropriate to grant summary decree. The test I have to apply at this stage must
be to ask myself if the question of law which is raised (the only question
being one of law) admits of a clear and obvious answer in the pursuers'
favour..."
[31] Counsel submitted that the question of law in the present case
was the issue of onus in terms of Regulation 4(3). The issue was a live one, which had not been
resolved. Where such a question of law
arose, unless that question admitted of a clear and obvious answer in the
pursuer's favour, the case should not be decided on what was, in effect, the
motion roll.
Reply for the pursuer
[32] Senior counsel for the pursuer responded on three matters:
[33] First, the pursuer did not rely upon the convictions as
establishing an automatic breach of the Regulations: cf. dicta
in Gray v Fire Alarm Fabrication Services Limited [2006] EWHC 849 (QB). The pursuer relied on the facts upon which
those convictions were based in terms of section 10 of the Law Reform
(Miscellaneous Provisions) (Scotland)
Act 1968.
[34] Secondly, it was significant that, wherever the onus lay in
relation to foreseeability, the defenders had not submitted that what occurred
was not reasonably foreseeable. Counsel
did not accept that the onus rested on the pursuer, but in any event, the pursuer
had appropriate averments at page 7A ("That risk assessment identifies failure
of tackle as a significant hazard with potentially serious or fatal injuries to
riggers and slingers.")
[35] Thirdly, the defenders had been convicted of failing to do
something termed "reasonably practicable", yet they denied that a risk was
foreseeable. That was an illogical
approach.
[36] Ultimately, wherever the onus lay, the question was whether it
was reasonably foreseeable that an employee might be injured, and the answer to
that question was in the affirmative.
Discussion
[37] Regulation 4 of the Provision and Use of
Work Equipment Regulations 1998 provides inter
alia:
"(3) Every
employer shall ensure that work equipment is used only for operations for
which, and under conditions for which, it is suitable.
(4) In this
regulation "suitable" -
(a) subject to
sub-paragraph (b), means suitable in any respect which it is reasonably
foreseeable will affect the health and safety of any person ..."
[38] In my opinion, where a crane assembly includes interlocking
devices such as a lifting adaptor and a mandril, one of which has to lock on to
the other in order to provide the composite which will lift a weight of 1.7
tons, it cannot be contended that a lifting adaptor which is acknowledged to be
the "wrong size" for the mandril (see pursuer's Statement IV at page
6B-C; and defenders' Answer 4 at page
9D-E) is work equipment which is being "used only for operations for which, and
under conditions for which, it is suitable".
Something which is the wrong size is by definition not suitable in terms
of Regulation 4. Accordingly I consider
that the defenders' averments clearly acknowledge a breach of Regulation 4.
[39] Furthermore, with reference to the definition of "suitable" in
Regulation 4(4), I do not accept that the level or degree of reasonable
foreseeability may vary depending upon whether an individual was, for example,
an employee working on the factory floor, or a manager, or an employer
supplying and installing equipment for his employees, or an employer relying
upon a third party to supply and install the equipment. The statutory definition of "suitable" in
Regulation 4(4) is in my view an objective question for the court to decide on
the facts of the case: cf. Robb v Salamis (M and I) Ltd, 2007 SLT 158,
paragraphs [23] to [27].
[40] In the present case, certain crucial facts are admitted in the
pleadings. The defenders themselves aver
that "the lifting adaptor supplied by Vetco Gray Controls Limited was the wrong
size for the mandril" (Record page 9D-E).
As a result, a component in the relevant crane assembly was the wrong
size; the crane assembly was not (and
could not have been) properly and correctly constructed; and it follows in my view that it was
reasonably foreseeable that as soon as the incorrectly-constructed crane
assembly was put into use by the carrying of a heavy load, there was a risk
that the component parts would not hold together. Bearing in mind the scale of the operations
involved, the size and weight of loads being carried, and the forces involved,
the risk that component parts would not hold together inevitably carried a risk
of injury to employees in the vicinity, whether the ultimate event was a load
moving unexpectedly, or a component of the crane assembly becoming detached, or
the load itself dropping to the ground, or some other dangerous event: cf. the pursuer's averments in
Statement IV at page 6E to 7D:
"The defenders
have provided a risk assessment for lifting operations. That risk assessment identifies failure of
tackle as a significant hazard with potentially serious or fatal injuries to
riggers and slingers."
See too the dicta of Lords Hope and Clyde
in Robb v Salamis (M and I) Ltd, 2007 S.L.T. 158, paragraphs
[29] and [39].
[41] Accordingly even without the conviction
referred to in terms of Section 10 of the Law Reform (Miscellaneous
Proceedings) (Scotland) Act 1968, I am satisfied that the parties' averments
(as refined and clarified by counsel for the defenders in the course of the
debate, see paragraph [23] above) disclose a clear breach on the part of the
defenders of Regulation 4(3) of the 1998 Regulations. The conviction in terms of the Health and
Safety at Work Act 1974 gives added strength to the pursuer's case, in that the
defenders have been found as a matter of fact to have failed to ensure so far
as reasonably practicable the health, safety and welfare at work of their
employees (including the pursuer) in the context of the lifting adaptor
described in the complaint as "unsuitable".
The facts set out in the complaint must be taken pro veritate in the light of the unchallenged conviction: cf. Section 10(2)(b) of the Law Reform
(Miscellaneous Provisions) (Scotland)
Act 1968.
[42] It will be seen that I consider the
facts admitted in this case to make such a clear case of reasonably foreseeable
risk to the health or safety of the pursuer that the issue of onus in terms of
Regulation 4(3) does not arise. If,
contrary to my view, the issue of onus remains live, it seems to me that the
clear inference which arises when a component part of a crane assembly is the
"wrong size" is that the component part will not fit properly, and therefore
will not properly perform its functions.
One important function of a lifting adaptor such as the one in question
was to provide a secure link when the crane was lifting heavy loads. If the lifting adaptor provided cannot be
relied upon to perform its functions (including the function of providing a
secure link) then it follows that it is reasonably foreseeable that the wrong-sized
component will result in a malfunction or a disintegration of the crane
assembly, with risks to the health and safety of employees in the
vicinity. In such circumstances it is my
view that the onus then rests on the defenders to rebut this conclusion, with
averments offering to prove why, despite its wrong size, the lifting adaptor
was suitable for use in the crane assembly without incurring such risks. No such averments are made by the defenders
in the present case. Without such
averments, the defenders are in my view bound to fail.
[43] Finally, I should add that it was not
disputed that the question whether the defenders have a right of relief against
the third party supplier and fitter Vetco Gray Controls Limited is irrelevant
when assessing the defenders' liability for breach of their non-delegable duty
in terms of Regulation 4(3) of the 1998 Regulations.
Decision
[44] I have concluded that the defenders have no genuine defence to
the pursuer's case based on Regulation 4(3) of the Provision and Use of Work
Equipment Regulations 1998. I therefore
consider that the defenders are bound to fail on the issue of liability. That being so, the motion for summary decree
is well founded: cf. Henderson v
3052775 Nova Scotia Ltd, 2006 SC (HL) 85, Lord Rodger at
paragraphs [11] to [19]. I accordingly
grant summary decree in terms of Rule of Court 21.2, finding the defenders
liable to make reparation to the pursuer, and restricting any further inquiry
to issues of contributory fault, the question of any liability on the part of
the third party, and quantification of damages.
I reserve the question of expenses to enable parties to address me on
that matter.
